Whistleblower Protection Enhancement Act of 2012

*(Also known as: “WPEA”)

The Whistleblower Protection Enhancement Act of 2012 (the “WPEA”) strengthens protections available to federal employee whistleblowers under the Whistleblower Protection Enhancement Act of 1989 (the “WPA”).

The WEPA directs Inspectors General to designate a whistleblower protection ombudsman to educate whistleblower employees about prohibitions on retaliation against them. The WEPA also directs the ombudsman to inform whistleblower employees about rights and remedies available to them if they believe they have been or may be retaliated against, by their employer.

The purpose of the ombudsman is to provide as much information as possible to assist and encourage whistleblowers, potential whistleblowers, and victims of actual or threatened whistleblower retaliation.

The new law made clear that whistleblowers do not lose their protected status if, for example, they were forced to break the law by their employer or if the information had previously been revealed. The WPEA clarified the WPA and better protects whistleblowers.

Whistleblower Protection for Federal Employees, Former Employees, and Applicants for Employment

Protected Disclosures of Fraud, Waste, and Abuse

A “protected disclosure” under Federal whistleblower protection law includes any disclosure of information that an employee, former employee, or applicant for employment reasonably believes evidences —

violation of any law, rule, or regulation;

gross mismanagement;

gross waste of funds;

abuse of authority; or

substantial and specific danger to public health or safety.

Disclosures of such wrongdoing are covered by whistleblower protections regardless of whether they are made to the Office of the Inspector General, the Office of Special Counsel, a supervisor or someone higher up in management, or a member of Congress or congressional committee—provided that the disclosure is not specifically prohibited by law and the information does not have to be kept secret in the interest of national defense or the conduct of foreign affairs.

Prohibited Personnel Practices

Federal whistleblower protection law provides legal remedies for employees or job applicants who face retaliation for making protected disclosures of fraud, waste, abuse, mismanagement, or substantial and specific danger to public safety or health.

Specifically, it is a prohibited personnel practice for Federal employers to retaliate against whistleblowers by taking, failing to take, or threatening to take or not to take, a personnel action. “Personnel action” in this context means an appointment, promotion, disciplinary action, detail, transfer, reassignment, reinstatement, restoration, or reemployment; a decision concerning performance evaluations, pay, benefits, awards, education, training; or any other significant change in duties, responsibilities, or working conditions. In addition, the law prohibits retaliation for filing an appeal, complaint, or grievance; helping someone else file or testifying on their behalf; or cooperating with or disclosing information to the Office of the Inspector General (“OIG”).

If you are an employee of the Office of Personnel Management (“OPM”) or an applicant for employment at OPM and you have been subjected to or threatened with this kind of whistleblower retaliation, you have the right to seek redress from the OPM OIG, the Office of Special Counsel, or (in some cases) the Merit Systems Protection Board.

Special Requirements for Nondisclosure Agreements.

As further protection for potential whistleblowers, the Whistleblower Protection Enhancement Act of 2012 prohibits agencies from issuing or enforcing nondisclosure agreements, policies, or forms that do not contain the following statement:

“These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to

(1) classified information,

(2) communications to Congress,

(3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or

(4) any other whistleblower protection.

The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”

The types of protected disclosures covered by PPD-19 have some limits: the protection only extends to employees whose disclosures were

1) to a supervisor in the employee’s direct chain of command, including the Director of OPM, or 2) to the Inspector General, or

3) to an employee designated by either of the above officials for the purpose of receiving such disclosures.

The protection also extends to employees who cooperate with or disclose information to the OIG in connection with an audit, inspection, or investigation.

The Office of Special Counsel or the Merit Systems Protection Board does not address personnel matters of whistleblower retaliation or threatened retaliation that would affect an employee’s security clearance.

Instead, PPD-19 requires each agency to establish an internal review process to address whether the denial or revocation of an employee’s clearance should be reconsidered because it was improperly administered based on the employee’s protected whistleblower disclosures.

Your whistleblower attorney can help protect you from unfair disciplinary action or unfavorable information in your employee file that may result from this investigation.

Any OPM employee whose security clearance is denied or revoked should receive a notice from OPM Facilities, Security and Contracting (FSC) fully explaining the reason(s) for their denial or revocation and the appeals process.